Smart Firms Cultivate Their Legal-Writing Talent

Wednesday, October 24, 2012 12:13

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I write this column on legal writing primarily for law students and new associates whose legal writing hasn’t been disfigured by years of indulging a that’s-the-way-I’ve-always-done-it-so-it-must-be-right attitude.

But new associates can’t consistently improve their writing by merely internalizing legal-writing tips from legal websites. Law firms must play a role too, by giving their associates the training and opportunities to improve their writing.

So what can firms do to cultivate their legal-writing talent? It’s not as difficult as it might seem.

Though the rigor and complexity of legal writing will vary depending on the court, law clerks devote most of their time to research and writing.

If possible, a firm should encourage its summer associates to clerk before joining the firm by agreeing to defer the start dates of associates who accept clerkships. Most large firms offer these start-date deferrals; in fact, they often encourage clerking by giving former law clerks partnership-track credit for their clerkships.

Most former law clerks start their careers as better writers compared to their peers who didn’t clerk. Firms that hire former law clerks also get the added benefit of having an expert on the court’s practice and the proclivities of its judges. And because law clerks begin private practice with improved legal-writing skills, the firm and its clients spend less time subsidizing their legal-writing-learning curve.

Legal-Writing Programs Boost Emerging Legal Writers

Most law firms don’t offer in-house legal-writing programs. Some firms might require their associates to attend legal-writing seminars on their own time, but that’s about it.

Firms ignore reality if they expect new associates to practice their legal writing during their free time. Most associates who are billing 160–200 hours per month will always find other things to do instead of investing their free time to improve their legal-writing skills.

It’s true that it costs a firm time and money—e.g., lost billable hours—to develop a meaningful in-house legal-writing program. But the program need not be fancy or complicated. Firms, for example, can ask their experienced writers to give lunch presentations or short seminars to associates about how they became better writers.

Because in-house legal-writing programs are usually scheduled during the work day, they force associates to devote work time to improving their writing. And firms can use in-house programs to establish legal-writing benchmarks to aid their associate-evaluation process.

Mentorships Allow Firms to Track Improvement in Legal Writing

After an associate joins a firm, the firm should pair the associate with another lawyer—usually a senior associate or junior partner—who is an experienced legal writer.

Like implementing an in-house legal-writing program, legal-writing mentorships give firms the ability to track in real time the improvement in associates’ legal-writing skills, instead of waiting to evaluate their associates’ legal writing during an overall review of the associates’ work.

Most firms don’t offer incentives to associates who want to improve their writing through outside legal-writing projects. This baffles me, given how important good legal writing is to client work product. Indeed, compared to how much these projects benefit associates’ legal-writing skills, the cost of offering these incentives is close to nil.

It doesn’t matter what form the incentives take. Firms can offer money—like $250–$500—to associates who publish meaningful articles in legal newspapers or external or firm blogs. Or firms can simply recognize associates’ outside writing projects as part of the associates’ bonus compensation.

What firms shouldn’t do is offer incentives for outside writing projects that don’t improve legal writing. Firms should discourage associates from writing full-length law-review articles because the marginal cost of these projects—the associates’ limited time—far outweighs any benefit to an associate’s legal-writing skills.

Motivated associates who work to improve their legal writing through outside writing projects will invariably produce better work product for their firm, which will result in greater client satisfaction and retention. And technologically-savvy firms can market their practice areas and legal-writing acumen by publishing the results of these projects on firm websites.

Firms Nurture Legal-Writing Talent By Telling the Truth

As Lauren Stiller Rikleen recently wrote in the Harvard Business Review, successful firms avoid imbalances in their legal-talent pool:

[T]oo many law firms . . . still hold onto to aspects of a “free market” where senior partners can choose [who] they want to work on their projects. . . . This undermines the careers of less experienced attorneys whose early errors can result in exclusion from future assignments. Thus, the critical talent pool upon which law firms depend develops unevenly.

The same is true for firms that allow their legal-writing-talent pool to become unbalanced.

Some associates’ legal-writing skills will improve as their careers develop. Other associates will lag behind their peers—perhaps because they got stuck on a long document review; or they work in a practice area that doesn’t require intensive legal writing; or these associates began their careers as poor writers and have done nothing to improve their writing.

But if a firm’s legal-writing-talent pool becomes unbalanced, the firm’s work product doubtless will suffer.

By their nature, partners are both self-interested and rational. If a partner can choose between assigning new work to an associate who is a good writer or assigning the work to an associate who is a bad writer, the partner will assign the work to the good writer.

But this process of partner self-selection means that a small cadre of good writers will have more opportunities to improve their legal writing; whereas, poor writers will have fewer opportunities to catch up with their peers.

An unbalanced legal-writing-talent pool created by the process of partner self-selection doesn’t just adversely affect the poor writers who can’t get good writing projects. Over time, the good writers are also affected, because they can only work on a certain number of new writing projects without sacrificing the quality of their work product.

So a highly skewed allocation of legal-writing projects to associates who are good writers can lead paradoxically to frustration and dissatisfaction among good writers when they begin to notice that their work product is suffering under the weight of an unreasonable writing workload.

Besides implementing the legal-writing programs and mentorships discussed above, there are two ways firms can correct imbalances in their legal-writing-talent pool. The first is relatively easy to implement. The second is more drastic.

Firms should first attempt to correct the imbalance by requiring partners to allocate all new legal-writing work as evenly as possible among associates. Larger firms commonly do this by having an administrative partner assign all new associate work.

But if the imbalance in legal-writing talent can’t be corrected this way—either because partners’ writing work can’t be allocated evenly among associates or because certain partners refuse to comply—firms must let go their nonperforming associates and hire new associates who can carry their share of the legal-writing workload.

Is this solution atavistic? Is it insensitive? Absolutely not.

As historian Barbara Tuchmanobserved, “telling the truth about a given condition is absolutely requisite to any possibility of reforming it.” Telling the truth about how poor legal writing negatively affects the cohesiveness within a firm and the firm’s overall work product is the first step in correcting the problem of unbalanced legal-writing talent.

Firms that lie to themselves about the seriousness of the problem, and that avoid letting go underperforming writers, will, over time, suffer the same fate at the hands of their clients.

Cultivating Good Legal Writers Improves the Bottom Line

The practice of law is highly competitive, and good legal writing will always be essential to good work product and satisfied clients.

I acknowledge that it costs firms time and money to cultivate their legal-writing talent. But legal-writing talent is just as important as other infrastructure like information technology, which no smart firm would dare to neglect.

If firms strategically cultivate their legal-writing talent, they can help new associates improve their legal writing and they can avoid creating an unbalanced legal-writing-talent pool. If, on the other hand, firms choose to neglect their legal-writing talent, they risk losing their good writers through attrition and, ultimately, their clients.